The Telegraph
Friday , February 21 , 2014
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Haste finger at Jaya after stay
Glare on flip-flop on Rajiv convicts

Congress workers protest in Haridwar on Thursday against Jayalalithaa’s plan to release Rajiv Gandhi’s killers. (PTI)

Chennai, Feb. 20: The euphoria over Jayalalithaa’s dramatic announcement yesterday to release the seven life convicts in the Rajiv Gandhi assassination case gave way to muted anti-climax today after the Supreme Court stayed her move.

As realisation dawned that the prisoners would not walk free so soon or easily, leaders who had showered Jayalalithaa with effusive praise fell silent.

DMK president M. Karunanidhi suspected if the haste in announcing the release plans without following the due process invited the court stay.

The chief minister, though, had not expected the Centre to challenge her decision and reject her three-day deadline for a response.

“She would have been naive to presume that a Congress government would be a silent spectator when Rajiv’s assassins are allowed to walk free even if they have been in prison for 23 years,” said a state Congress leader.

Also, doubts emerged if Jayalalithaa, in her hurry to grab the entire credit for releasing the convicts and championing the cause of Lankan Tamils, could have missed out key legal procedures.

The speed with which her government seized the apex court’s move to commute to life the death sentences of three of the convicts — Murugan, Santhan and Perarivalan — contradicts her government’s stand in the recent past to oppose the parole plea of Nalini, Murugan’s wife, and reject her demand for an advisory board to look into her request.

Jayalalithaa’s dramatic announcement yesterday raised eyebrows also because nearly 100 other life convicts have been languishing in Tamil Nadu’s prisons for over 20 years. According to a senior officer, most have applied for remission. They are yet to get a proper hearing.

“If the Centre lists all these contradictions and infirmities, the state government could be in for a legal snub from the Supreme Court on March 6 when the case comes up next,” senior advocate K.M. Vijayan said.

Others questioned the notion that releasing the seven would pay off in elections. “She (Jayalalithaa) is operating under the mistaken notion that the Lankan Tamils issue will fetch votes when it has never been an election issue. Otherwise the MDMK’s Vaiko would have become chief minister as he has been the longest and most strident campaigner on the issue,” said Thuglak editor and political commentator Cho Ramaswamy.

Some pointed out how Jayalalithaa had changed her stand over the years. “It is strange that only in December 2006, Jayalalithaa wanted these three convicts to be hanged and urged the Centre to reject their mercy pleas. She also questioned Sonia Gandhi’s sincerity to her husband Rajiv when she (Sonia) sought Nalini’s death sentence to be commuted to a life term. Jayalalithaa’s anti-LTTE stand too is well established. So such an about-turn defies logic unless it is purely political,” said a retired police officer.

Other observers believed Jayalalithaa was more keen to trump her opponents. During her Assembly speech yesterday when she announced the release plan, she repeatedly accused Karunanidhi of failing to commute the death sentence of the trio in 2000 when he was in power.

Since being sworn in 2011, the Jayalalithaa government has got Assembly resolutions passed seeking relief for the death-row trio and demanding severance of diplomatic ties with Sri Lanka for alleged war crimes on Tamils by the Mahinda Rajapaksa government.

Jayalalithaa had also asked the Centre to move a strong resolution against Lanka at the UN rights council and urged the Prime Minister not to attend the Commonwealth meeting in Colombo last November. Manmohan Singh did not go eventually. Foreign minister Salman Khurshid represented India at the event.


The Tamil Nadu government has time till March 6 to build the defence of its threat to free the seven convicts in the Rajiv Gandhi assassination case.

When the Supreme Court takes up the issue that day, the state will be expected to show under which provision it can unilaterally free the prisoners as the chief minister had threatened to do if the Centre did not respond in three days.

This is because Section 435 of the Criminal Procedure Code stipulates that when a case is prosecuted by a central agency like the CBI, the Union government also should issue an order cancelling the jail term.

While Section 435 (2) of the CrPC makes consent of the central government mandatory, Sections 432 and 433 gives the state government power to grant remission on its own, provided the prosecution agency was the respective state government.

The following are some of the options the Tamil Nadu government may explore, according to lawyers based in the state.

lThe state may contend that Section 435 only postulates a consultation with the central government but consent of the Centre is not mandatory and the Union’s views are not binding. However, Section 435 (2) leaves no room for confusion.

“No order of suspension, remission or commutation of sentences passed by the state government… shall have effect unless an order… has also been made by the central
government in relation to the offences committed by such person with regard to matters to which the executive power of the Union extends,” the sub-section says.

Since the sub-section uses unequivocal words like “shall” and “unless”, it is expected to be treated as a “non-obstante” clause, which means it overrides other conflicting clauses, if any.

Since the Supreme Court on Thursday ordered that status quo be maintained, the state can say it could not file an application seeking the release of the convicts. It has to wait for the apex court’s ruling before fulfilling procedural obligations.

But some Tamil Nadu lawyers have contended that since there was no application from the convicts in this case and the remission was ordered by the state government on its own, the need to go to a judge does not arise. The Supreme Court is expected to clarify such issues when it takes up the Centre’s petition next month.

If it loses the legal battle, the Jayalalithaa government can always claim that it tried its best but the Centre sabotaged the release. However, the Opposition in Tamil Nadu feels the haste has backfired.

Another option is to somehow convince the Centre to give its consent. But this seems unrealistic, given the stand taken by the Centre and the Congress.

For the Centre, Section 435 (2) will be the strongest weapon. If the review petition on the commutation, expected to be filed by the Centre on Friday, is pending on March 6, the Union government can seek a stay on the release proceedings till the review is over. Such petitions, if accepted, usually take two to three months to dispose of.